Is it illegal for online merchant banks to use Alipay loans?

[case]

At the beginning of 20 18, the defendant Wang met and interacted with the victim Li. 2065438+March 2008, the defendant Wang lived with Li, and without Li's knowledge, he fraudulently used Li's identity information to borrow money from the online merchant bank through the Alipay account in Li's mobile phone. After the online merchant bank lent 60,000 yuan to Li's Alipay account, Wang transferred 60,000 yuan to his Alipay account and used the above money for his living expenses with Li. After learning about this, Li alerted the public security organ and paid off the bank loan of the online merchant.

[Disagree]

There are two opinions about the nature of this case:

The first opinion is that Wang's behavior constitutes theft.

The second opinion is that Wang's behavior constitutes a crime of loan fraud. The victim Wang used his identity to apply for a bank loan from an online merchant through Alipay account, and the loan was transferred out after the account was received, and the victim did not know. There is no loan fund in the victim's Alipay account, but these funds are actually transferred directly from the loan platform to Wang's name. Wang fraudulently used other people's identity information and Alipay account to apply for a loan, which caused the online merchant bank to fall into a misunderstanding and delivered the property based on this misunderstanding. Therefore, Wang's behavior is actually using the identity of others to defraud bank loans by fraudulent means, which should be recognized as the crime of loan fraud.

[opinion]

The author agrees with the first opinion that Wang's behavior constitutes theft. The specific analysis is as follows:

First, judging from the defendant's behavior means, the defendant Wang's illegal possession of loan funds includes two stages: using Li's mobile phone to operate the loan and transferring it to his account. After Wang applied for a loan with Li's mobile phone Alipay, the online merchant bank issued the loan funds to Li's Alipay account. At this time, the funds are still under the name of Li, and Wang has not yet achieved possession. Subsequently, Wang used the payment password he learned during his cohabitation with Li to secretly transfer the money involved to his Alipay account to complete illegal possession. Therefore, Wang borrowed money from the online lending platform in the name of Li without Li's knowledge, which created preliminary conditions for his illegal possession, and his secret transfer was the key to the implementation of illegal possession. Wang's means to complete the crime is mainly to use the convenience of mobile phone and Alipay account information obtained during his life with Li, rather than using the management loopholes of the online loan platform. This is also the key point that this case is qualitatively different from the behavior of obtaining property by cracking the password and account number of a stranger's mobile phone through technology.

Secondly, judging from the legal interests infringed by the defendant's behavior, the defendant's behavior violated Li's property rights and interests, not the financial order and capital security of the online merchant bank. The Alipay App in Li's mobile phone is downloaded by Li himself, registered and certified in real name, and used normally. The account password and payment password are also kept by him. The application of online merchant bank is in its Alipay account interface. Although Li does not allow Wang to use his Alipay for online merchant bank loans, based on his special relationship with Wang, allowing Wang to use his mobile phone and let Wang know the relevant passwords is Li's poor management of personal property and information. As an online merchant bank that issues loans, it reviews and issues loans according to the credit rating of Alipay customers and normal workflow. When Wang used Li's Alipay account to apply for a loan, the online merchant bank naturally thought that the transaction object was Li. The money was also paid to Li's Alipay account, and there was no fault or negligence in the transaction process. Judging from the validity of the loan contract, according to the apparent agency rule stipulated in Article 172 of the General Principles of Civil Law, although Wang actually has no loan agency right, the other online merchant bank has reason to think that Wang has the agency right and conduct legal acts with him. The legal consequences of his behavior should be borne by the principal Li, and the agency behavior is valid. In this case, the online merchant bank belongs to a bona fide third party, and the adverse consequences and risks caused by Li's improper personal property and information should not be borne by the online merchant bank. Otherwise, it will mean an infinite increase in the duty of care.

To sum up, Wang's behavior of using an acquaintance's mobile phone to pay Alipay's loan for illegal possession should be regarded as theft.